In the Matter of the Termination of the Parent-Child Relationship of: C.C. III (Minor Child) and C.C. II (Father) v. Indiana Department of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 18 2014, 9:28 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

YVETTE M. LAPLANTE GREGORY F. ZOELLER
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputies Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
C.C. III (Minor Child) and C.C. II (Father), )
Appellant-Respondent, )
)
vs. ) No. 82A01-1401-JT-39
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
Appellee-Petitioner. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Brett J. Niemeier, Judge
The Honorable Renee Allen Ferguson, Magistrate
Cause No. 82D01-1308-JT-85

August 18, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
 Case Summary

C.C. II (“Father”) appeals the juvenile court’s order terminating his parental rights as

to C.C. III (“Child”). We affirm.

Issue

Father raises several issues for our review, which we consolidate into a single issue,

whether the trial court abused its discretion in certain evidentiary rulings, thereby committing

reversible error.1

Facts and Procedural History

Child was born to Father and Mother in January 2003. In December 2011, Mother

died. Father lived with Child and Child’s older sister, B.C. Also residing in the home was

the children’s maternal grandmother.

On June 11, 2012, a report was submitted to the Vanderburgh County Department of

Child Services (“DCS”), alleging that Father had engaged in incest with B.C. The same day,

DCS and the Evansville Police Department went to the residence and removed both Child

and B.C. from the home. Father subsequently admitted to having engaged in incest with

B.C., and was charged with numerous counts of Child Molesting and Incest. He remained

incarcerated throughout the course of the instant proceedings.

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In his reply brief, responding to DCS’s arguments concerning waiver of objection to certain evidence, Father
contends that the admission of certain evidence was fundamental error. Because the substance of this
argument overlaps with the other issues raised by Father on appeal, and because we find any error harmless, we
do not separately address Father’s contention of fundamental error.

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 Child and B.C. were placed in foster care. On June 19, 2012, Child and B.C. were

adjudicated as Children in Need of Services (“CHINS”). During the pendency of the

proceedings, B.C. reached the age of majority.

On August 15, 2013, DCS filed a petition to terminate Father’s parental rights as to

Child. An evidentiary hearing on DCS’s petition was conducted on November 18, 2013.

During the hearing, numerous documents and other pieces of evidence were entered into

evidence; Father objected to some of these, but not to others.

On January 14, 2014, the court entered its order terminating Father’s parental rights to

Child.

This appeal ensued. Additional facts will be supplied as necessary.

Discussion and Decision

Father appeals the trial court’s order terminating his parental rights. Our standard of

review is highly deferential in cases concerning the termination of parental rights. In re K.S.,

750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set aside the trial court’s

judgment terminating a parent-child relationship unless it is clearly erroneous. In re A.A.C.,

682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the sufficiency of the evidence

to support a judgment of involuntary termination of a parent-child relationship, we neither

reweigh the evidence nor judge the credibility of the witnesses. Id. We consider only the

evidence that supports the judgment and the reasonable inferences to be drawn therefrom. Id.

Parental rights are of a constitutional dimension, but the law provides for the

termination of those rights when the parents are unable or unwilling to meet their parental

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responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

(Ind. 2005). The purpose of terminating parental rights is not to punish the parents, but to

protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the DCS must allege

and prove by clear and convincing evidence in order to terminate a parent-child relationship:

(A) That one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are
not required, including a description of the court’s finding, the
date of the finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and has been under
the supervision of a county office of family and children for at
least fifteen (15) months of the most recent twenty-two (22)
months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need
of services or a delinquent child;

(B) That one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted
in the child’s removal or the reasons for placement outside the
home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the
child.
(iii) The child has, on two (2) separate occasions, been adjudicated a
child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

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 If the court finds that the allegations in a petition described in Section 4 of this chapter

are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). A

trial court must judge a parent’s fitness to care for his or her child at the time of the

termination hearing, taking into consideration evidence of changed conditions. In re J.T.,

742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial court also must “evaluate

the parent’s habitual patterns of conduct to determine the probability of future neglect or

deprivation of the child.” Id. Courts have properly considered evidence of a parent’s prior

criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and

lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family &

Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

Within this appeal, Father challenges the termination court’s evidentiary rulings.

Rulings on the admissibility of evidence are left to the sound discretion of the trial courts.

We review such rulings for an abuse of discretion, which occurs when the court’s decision is

contrary to the logic and effect of the facts and circumstances before it. Even where the trial

court has abused its discretion in ruling on evidentiary matters, we will not reverse the

judgment where such errors are harmless, that is, unless the trial court’s errors prejudiced the

substantive rights of the objecting party. See Ind. Trial Rule 61.

Here, Father contends that the termination court’s rulings, which admitted into

evidence various items of evidence, were contrary to the hearsay rule. These included DVD

recordings of interviews with Child and B.C. concerning Father’s conduct and certain

testimony of Child’s caseworker concerning the interviews, the probable cause affidavit and

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other documents associated with Father’s criminal case, an investigative report prepared by a

DCS caseworker, and statements in counseling records of Child. Most of these items

included or repeated allegations concerning Father’s alleged molestation of B.C.

By the time of the hearing on DCS’s petition to terminate parental rights, B.C. had

reached age eighteen, and her disposition was not a subject of the termination proceedings.

Thus, the allegations concerning Father’s conduct with B.C. were relevant largely to establish

a basis for the removal of Child from Father’s care and Father’s historical pattern of conduct.

There is no evidence that Child was subject to abuse of the type alleged as to B.C. The

evidentiary matters of which Father complains were therefore of limited relevance to the

adjudication of DCS’s petition to terminate parental rights.

Assuming without deciding that these items were inadmissible, however, we conclude

that any such error was harmless. Moreover, much of this is cumulative evidence that

established the basis upon which Child was removed from the home.

Father contends that, without this evidence, there is insufficient evidence to establish

the requirement that the termination court conclude by clear and convincing evidence that the

reasons for Child’s removal from the home would not be remedied. That is, Father argues

that DCS did not provide sufficient evidence to satisfy the requirements of subsections 31-

35-2-4(b)(2)(B)(i) and (ii). See supra. This statute “is written in the disjunctive” so that only

one of the requirements of subsection (B)—here, either that there is a reasonable probability

the conditions necessitating a child’s removal will not be remedied or that continuation of the

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parent-child relationship poses a threat to the child’s well-being—need be proved by clear

and convincing evidence. In re L.S., 717 N.E.2d at 209.

Our review of the record reveals that, after Child’s removal from the home and

through the time of the hearing on the petition to terminate parental rights, Father remained

incarcerated and was therefore unable to receive any form of services from DCS. Testimony

from Child’s Court-Appointed Special Advocate, Bianca Hernandez (“Hernandez”), and

Layne Chapman (“Chapman”), a DCS case worker, indicated that during the pendency of the

proceedings, Child developed a strong bond with his foster mother and asked independently

on several occasions for his foster mother to adopt him. Both of these individuals testified

that while initially Child communicated through written correspondence with Father, by

April 2013—more than six months prior to the hearing on the termination petition—Child

voluntarily ceased communicating with Father. Testimony from Hernandez and Chapman

indicated that before removal from the home, B.C. was responsible for most of the parental

and domestic work associated with Child’s care. Chapman testified that, in B.C.’s absence, it

was unknown how Child would fare; this was one of several reasons Chapman gave for

opining that termination of Father’s parental rights was in Child’s best interests.

In sum, then, there was sufficient independent evidence that reunification of Father

and Child posed a threat to Child’s well-being. See I.C. § 31-35-4-2(b)(2)(B)(ii). We

accordingly find any error associated with the admission of evidence concerning Father’s

alleged conduct with B.C. to be harmless, and affirm the order terminating Father’s parental

rights as to Child.

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 Affirmed.

NAJAM, J., and PYLE, J., concur.

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